Employee References

It is important that employers and employees know who is authorised to give a reference, and who they should approach. 

 

Employers should make use of disclaimers, as they may deter an employee or a new employer from making a claim, though this is not guaranteed. A disclaimer should state that you will not be held liable for any loss suffered as a result of the provision of the reference and that the reference is given confidentially and in good faith. A disclaimer used in these circumstances is void unless it is reasonable. Reasonableness depends on the precise circumstances. If the information is factually incorrect a disclaimer is unlikely to be reasonable. A clause attempting to exclude liability for negligence must be carefully worded and brought to the attention of the employee before the reference is given. The best approach is prevention. 

 

If an employer gives a reference for an employee who is currently bringing a claim, the employer should respond by clearly stating that a dispute is ongoing with the former employee, and that providing a reference at that time may prejudice the employer's position in proceedings. 

Once a job offer has been made, employers can ask questions about matters such as sick leave when taking up references. 

 

However, under provisions in the Equality Act 2010, it is unlawful for employers to ask job applicants questions about their health before they have been offered a role, subject to some exceptions related to specific circumstances. 

 

For questions which are raised after the job offer has been made, the employer providing the reference should discuss the response to the question directly with the employee to ensure that the response is accurate, factual and creates an overall fair impression. Employers must remain aware of disability discrimination where the absences are related to the employee’s disability. 

 

Employers that have made a job offer but then get a reference revealing high sickness absence, you should not simply withdraw the offer instantly. Instead, you should discuss the issue with the prospective employee to establish if they may have a disability. Then, with the employee’s consent, take specialist occupational health or other medical advice on their condition. You should then consider whether any adjustments are necessary and implement all reasonable adjustments. Only if no reasonable adjustments are possible may a job offer be withdrawn. It is also important that any job offers are conditional, otherwise an employer will be in breach of contract if they seek to withdraw an offer after it has been accepted. 

 

An employer can be liable for comments about an employee outside the context of a reference. The principle that applies in relation to references can be extended to other communications in relation to ex-employees. Employers should avoid even casual comments regarding former members of staff as this may give rise to a duty of care, especially if this could have a detrimental effect on the ex-employee’s career prospects.